Darren Adam Heitner, Esq. is the Founder of HEITNER LEGAL, Founder/CEO of Dynasty Dealings, LLC, Professor of Sports Law at the University of Florida and University of Florida Levin College of Law and Founder/Chief Editor of Sports Agent Blog, a leading niche industry publication. He is an attorney licensed to practice on the state and federal level, and focuses on sports, entertainment, and intellectual property litigation and transactional work.
Darren is the author of How to Play the Game: What Every Sports Attorney Needs to Know (published by the American Bar Association), Contributing Writer of An Athlete’s Guide to Agents, 5th Edition, and has authored many sports, entertainment and intellectual property-related Law Journal articles.
Darren has a Bachelors of Arts from the University of Florida and a Juris Doctor (J.D.) degree from the same institution.

Is The NFL Committing Copyright Infringement By Using Photos Without Consent?

On October 21, 2013, seven photographers filed a federal lawsuit in the Southern District of New York against the National Football League (NFL), Replay Photos, Getty Images and the Associated Press. The lawsuit requests damages for copyright infringement from all the defendants, damages for vicarious and contributory copyright infringement, breach of contract and breach of fiduciary duty. The basis for the action is that the NFL has used photos in violation of the photographers’ copyrights in the same. The photographers further allege that the NFL’s failed to receive consent to use the photos in connection with the NFL’s advertisements, news, promotions and products.

The NFL is a defendant in a lawsuit filed by seven photographers who say they are victims of copyright infringement. (Photo credit: Wikipedia)

Photographers regularly license photos they capture through third-party licensing agents; however the photographers named as plaintiffs in the lawsuit claim that they never transferred their copyrights in the photos to any agents. In fact, the Complaint states that the photographers retained the sole and exclusive ownership of all copyrights in the photos at issue.

The main plaintiff is Paul Spinelli, former Director of the NFL’s Photographic Services Division. FORBES spoke to Spinelli’s attorneys, Daniel Nelson and Kevin McCulloch of New York-based Nelson & McCulloch LLP for insight into the complicated lawsuit.

“The plaintiffs in this lawsuit include some of the most well-known sports photographers in the world,” stated Kevin McCulloch. ”Collectively, these photographers have photographed literally hundreds of NFL games and events. As freelance photographers, the plaintiffs are not paid salaries or even ‘day rates’ for their services by either the NFL or their agents. Instead, each plaintiff makes his living by retaining copyrights in his photos and earning royalties from licensing his works to customers.”

McCulloch says that the NFL willfully committed copyright infringement. ”The NFL acquired and used literally thousands of photos with total disregard for the rights of the copyrighted owners,” continued McCulloch. ”It is shameful that the NFL, a multi-billion dollar empire committed to protecting its own intellectual property, would demonstrate such total disregard for the rights of other content owners merely to avoid paying market-appropriate licensing fees.” It is important to keep in mind that the NFL may have a valid defense to the use of the photographs at issue. The true intent of the NFL is still to be determined.

The NFL is not the only entity accused of wrongdoing. The plaintiffs claim that Getty Images and the Associated Press engaged in unethical misconduct, which encouraged the NFL to use the plaintiffs’ copyrighted photos without consent. Getty Images originally obtained exclusive commercial licensing rights to NFL related photos in 2007. However, in 2009 the NFL accepted new bids for the exclusive rights to grant commercial licenses for NFL photographs. The NFL accepted the Associated Press’s bid and granted it exclusive licensing.

Getty Press, evidently upset with this gesture by the NFL, allegedly threated to remove the plaintiffs’ other sports photos from its distribution if they did not agree to continue licensing their NFL content through Getty Images. Eventually, all of the plaintiffs left Getty Images based on Getty’s alleged behavior. Mr. McCulloch is now hopeful that this lawsuit will have a direct impact on photo licensing agencies, such as Getty Images. ”We hope this suit will force Getty Images and the Associated Press to take seriously their responsibility to act in the interests of the photographers that they represent.”

The photographers are taking a giant risk in filing the lawsuit. Retaliation by these photo licensing agencies may be a concern. ”The public should know the tremendous courage that these photographers demonstrated by standing up to the NFL, Getty Images, and the Associated Press,” added McCulloch. ”These photographers have put their careers in jeopardy in order to stand up for not only their own rights but also the rights of all freelance photographers.”

The plaintiffs are asking the court to grant them a permanent injunction against the NFL from using or selling the plaintiffs’ works. Further, the photographers are asking for damages under the Copyright Act, which include statutory damages and damages incurred as a result of lost licensing revenue due to the NFL’s infringement. The plaintiffs are also seeking damages against Getty Images and AP based on claims of breach of contract and violation of fiduciary duties.

Darren Heitner is a Partner at Wolfe Law Miami, P.A. in Miami, Florida, Founder of Sports Agent Blog Professor of Sport Agency Management at Indiana University and author of a forthcoming book, How to Play the Game: What Every Sports Attorney Needs to Know published by the American Bar Association. Learn more about him at http://www.darrenheitner.com.

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